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EXHIBIT 3.5
EXECUTION COPY
AMENDMENT NO. 1
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF WINCHESTER PASTA, L.L.C.
This Amendment No. 1 to Limited Liability Company Agreement is
made this 28th day of January, 1999 among HERSHEY FOODS CORPORATION (the
"Original Member"), NEW WORLD PASTA COMPANY (the "Successor Member") and
WINCHESTER PASTA, L.L.C., a Delaware limited liability company (the "Company").
RECITALS
The Company was formed on December 17, 1998.
The Original Member and the Company are party to that certain
Limited Liability Company Agreement of the Company effective as of December 17,
1998 (the "Agreement"). On the date hereof, the Original Member is transferring
all of its interest in the Company to the Successor Member.
The parties desire to amend the Agreement as provided herein.
Therefore, in consideration of the mutual covenants,
agreements and representations set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Rights and Duties. The Original Member hereby irrevocably
transfers, assigns, conveys and delivers all of its right, title and interest
under the Agreement and in and to its interests as the sole member of the
Company to the Successor Member, and the Successor Member hereby accepts such
transfer, assignment, conveyance and delivery (the "Assignment"). For all
purposes of the Agreement from this time forward, the Successor Member shall
have all rights,
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duties and obligations of a member of the Company and a reference to the Member
shall be deemed to be a reference to the Successor Member. From this time
forward, the Original Member shall have no further rights, duties or obligations
as a member of the Company.
2. Manager. Effective upon full execution and delivery of this
Amendment No. 1, the Original Member resigns as Manager of the Company and the
Successor Member is hereby appointed Manager of the Company.
3. Representatives. The Original Member represents and
warrants that (i) immediately prior to giving effect to the Assignment, the
Original Member is the sole member and Manager of the Company, (ii) the member
interests transferred, assigned, conveyed and delivered hereby are the sole
member interests of the Company, (iii) immediately prior to giving effect to the
Assignment, such member interests are owned by the Original Member free and
clear of any and all liens, encumbrances and restrictions of any kind whatsoever
and (iv) no other person or entity, directly or indirectly, owns or has any
right, title or interest in or to the membership interests of the Company, any
other equity interest, or any right to acquire any member interest or other
equity interest, in the Company, or any security or interest that may be
exercisable or exchangeable for, or convertible into, any such interest,
including without limitation, any pre-emptive or other similar right.
4. Limited Amendment. Except as amended by this Amendment No.
1 and as the context may otherwise require to give effect to the intent and
purpose of this Amendment No. 1, the Agreement, as amended hereby, shall remain
in full force and effect without any other amendments or modifications.
5. Counterparts. This Amendment No. 1 may be executed in one
or more counterparts (including by means of telecopied signature pages), all of
which shall be considered one and the same Amendment No. 1, and shall become
effective when one or more such counterparts have been signed by each of the
parties and delivered to the other parties.
6. Entire Agreement. The Agreement, as amended by this
Amendment No. 1, contains the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, whether written or oral, relating to such
subject matter. The Original Member represents and warrants that prior to this
Amendment No. 1, the Agreement has not been amended, supplemented or otherwise
modified in any respect.
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7. Governing Law. This Amendment No. 1 shall be governed by
and construed in accordance with the internal laws of the State of Delaware
(without giving effect to its conflict of law principles).
8. Headings. The headings herein are included for convenience
of reference only and shall be ignored in the construction and interpretation
hereof.
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IN WITNESS WHEREOF, the parties have caused this Amendment No.
1 to be duly executed as of the date first written above.
NEW WORLD PASTA COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Assistant General Counsel
NEW WORLD PASTA COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Assistant General Counsel
WINCHESTER PASTA, L.L.C.
By: HERSHEY FOODS CORPORATION
Its: Manager
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Authorized Person
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